Summary Judgement in Medical Malpractice Action
October 12, 2020 by Scott Addison
Medical Malpractice action against Lincoln Derr client dismissed
Attorney Scott Addison recently won summary judgment in defense of our client, an orthopedic surgeon, in a case arising out of a nerve injury that occurred during a procedure to shorten a patient’s leg. The patient had previously undergone a total hip replacement by a physician in another state that, unfortunately, resulted in a leg-length discrepancy that caused her significant problems.
She traveled to consult with our client about correcting the problem, and a decision was ultimately made to perform a procedure that would remove a small portion of her lower femur to make her legs the same length once again. The procedure appeared to have gone well, but soon after, the patient experienced a foot-drop and tests indicated a likely nerve injury.
A subsequent surgeon explored the nerve and confirmed it was injured at the surgery location and was not conducting any signal to the lower leg. The patient then sued our client for injuring the nerve during the procedure.
The patient’s expert witness proposed a theory that the surgeons had inadvertently grabbed the sciatic nerve with retractors (used to expose the surgical field and to protect the nerves and vessels) and cut the nerve with the saw when cutting the bone. The surgeons testified that they conducted the surgery in the usual and proper manner, as they always did, and testified the retractors had been placed directly against the bone without anything caught between the retractor and the bone.
We moved for summary judgment on the basis that negligence cannot be presumed from the mere fact of injury in a medical negligence case. The patient’s expert had clearly based his opinion of negligence on the fact that the nerve was injured during the procedure.
After very thoughtful consideration of all the testimony and facts of the case, the Court agreed that the plaintiff’s theory of negligence was based on the mere fact of injury and granted summary judgment in our client’s favor.